By Mathew Goldstein
In a August 2, 2011 editorial titled Politics and Prayer, the New York Times editorial staff applauds a recent United States Court of Appeals for the Fourth Circuit decision outlawing the Forsyth County prayer policy because the prayers often featured sectarian references. The NY Times argues that the constitution forbids government from favoring "one religion", citing the court's observation that the invocations must not "repeatedly suggest that government has put its weight behind a particular faith." The NY Times then quoted the court criticizing the county's policy because it favored "the majoritarian faith in the community at the expense of religious minorities." This argument is seriously flawed because it ignores that "the majoritarian faith" encompasses more than "one religion" or "a particular faith" and that the Establishment Clause forbids "an establishment of religion", not "establishment of a religion" or "establishment of one religion" arbitrarily selected.
Forsyth County is majority Protestant, it is majority trinitarian, it is majority Christian, it is majority monotheist. There is no one majority religion or faith. Different religious belief based divisions of the same set of people results in multiple different religious belief majorities. The gratuitous addition of the qualifiers "a", "the", and "one" by the NY Times and the court to mis-characterize as singular the pluralism inherent in majoritarian religion is disingenuous and mischievous. Counting religions is capricious. Delineating a single religion for large groups of citizens is inherently subjective and arbitrary because there can be as many religions as there are people. One judge could count a single religion where another judge could count hundreds of religions.
There is no basis in law for judges to pick and choose for which religions the Establishment Clause applies and for which religions it does not apply. The concocted misconception that the constitution requires judges to identity "the" majority faith or "a" majority religion when evaluating the applicability of the Establishment Clause is in conflict with the underlying principles of impartiality and equity which gives the first amendment and, more generally, all laws, their warrant to claim to be just. It should be obvious that the Establishment Clause principle equally prohibits establishments of minority religion, regardless of how unlikely that result is in a democracy, multiple establishments of religion, however many such distinct establishments there are, and a single simultaneous establishment of multiple religions, regardless of how many different religions or faiths, however delineated, are simultaneously established in a given instance. The Establishment Clause applies equally to minority and majority religions, to any and all religions, to one and many religions.
Accordingly, if, as asserted by the court here, Forsyth County violated the Establishment Clause of the Constitution by starting its meetings with prayers “endorsing Christianity to the exclusion of other faiths” then it also violated the Establishment Clause of the Constitution by starting its meetings with prayers endorsing monotheism to the exclusion of polytheism and atheism. There is no non-prejudiced basis for declaring government favoritism for Christianity to be unconstitutional while declaring government favoritism for monotheism to be constitutional. That is a completely arbitrary distinction. Jesus as deity is Christian religion, singular God as deity is Abrahamic religion, one majority is larger than the other majority, but otherwise its the same violation of the same principle against government establishment of religion. Yet it is exactly this irrelevant distinction that many judges, courts, and the NY Times, repeatedly and inconsistently endorse as a foundation of Establishment Clause jurisprudence.
There is no such thing as inclusive or nonsectarian theistic prayer. Theism is exclusive to, and sectarian for, those who believe one or more gods should be worshiped, or be appealed to, with a prayer prior to starting work. If, as the NY Times asserts, "a government that favors one faith flouts the inclusive nature of American government, harming church and state" then a government that favors monotheism, or even theism more generally, is identically harming church and state by flouting the inclusive nature of American government. Excluding non-Christians and excluding non-theists is an identical harm to the identical principle. The NY Times, and the judges, by refusing to acknowledge this, are hypocritically declaring themselves to endorse a principle of inclusiveness while they simultaneously advocate against the identical inclusiveness principle. The only real difference is that one exclusion targets a different minority than the other exclusion. Prejudice or bigotry are the nouns that apply when one minority is not deemed equal before the law merely because that minority disagrees more completely or directly with the majority on a matter of opinion than the other dissenting minorities.